Employee entitled to trial period in job

Failure to comply with a contractual obligation to offer a trial period in a redundancy situation is likely to be unfair as held in this case. The Employment Appeal Tribunal did not need to say whether it would hold the same view in the absence of a contractual right to a trial period. However, in an earlier case it has been held that any failure to agree to a trial period for an offer of alternative employment could render a dismissal unfair.

The Employment Appeal Tribunal has held that a redundancy dismissal is unlikely to be fair in circumstances where the employer, in breach of contract, has failed to offer a trial period for an alternative role.

More junior role may not be suitable

The employee, in this case, upon being made redundant was offered a more junior alternative role. She was not invited to a trial period and upon being dismissed by reason of redundancy brought a claim for unfair dismissal.

Dismissing her claim the tribunal said that she had not complained at the time about the failure to allow her a trial period and that, even if she had had one, she would still have rejected the alternative role.

On appeal, however, the Employment Appeal Tribunal said that the tribunal had failed to deal with undisputed evidence about the potential benefit to her of having a trial period (trialing whether she would be able to work for someone who had been junior to her). There were also more general issues about being able to trial a role that represented a downgrade, which the tribunal failed to deal with.

Failure went to the heart of fairness

Remitting the case back to the tribunal, the Employment Appeal Tribunal commented that it was difficult to envisage how the dismissal could be fair given the employer’s admitted failure to offer the trial period.

Case reference and full judgment: George v London Borough of Brent

It stands to reason that when a person is asked to take a lower paid job or one which requires them to take a step down in career terms, employers should give the employee a few weeks to test the water before they decide whether they are prepared to take the job on a permanent basis or opt for redundancy. Saying ‘take it or leave it’ is unlikely to be regarded as ‘fair’.